The Scottish government has launched another white paper on independence, this time on the subject of migration. It is the sixth paper in the ‘Building a New Scotland’ series setting out the SNP-Green administration’s vision for a post-UK Scotland. The substance of the document isn’t as important as the fact of its existence. The Supreme Court ruled unanimously that the Scottish parliament cannot legislate for an independence referendum. The UK parliament shows no inclination to permit another referendum. So why is the Scottish government using public resources to promote a prospectus for a constitutional event that is opposed by Westminster and may never happen?
This is yet another reason why the leaders of the main parties at Westminster should agree to the establishment of a Royal Commission on devolution. The Scottish parliament turns 25 next year and that would be an opportune time to reflect on devolution. The expending of public resources, not just monies but civil servants’ time, on matters that are reserved to the UK parliament would be a prime candidate for investigation.
But devolution reform is not just about what might be considered Scotland Office matters. Anyone involved in the Home Affairs brief, or hoping to be after the next election, should recognise the opportunity presented by a royal commission. The Home Office’s powers are already limited in Scotland thanks to Tony Blair and David Cameron surrendering so many areas of responsibility to Holyrood, but there remains a deep hostility towards the Home Office within the Scottish political establishment. There isn’t much Holyrood can do legislatively to undermine Westminster on these matters but devolution is about more than just legislation.
Take the example of what in Scottish political circles is known as ‘the Battle of Kenmure Street’. On 13 May 2021, a large crowd led by an asylum activist gathered in Glasgow’s Kenmure Street to prevent the removal of two men. They obstructed and surrounded the immigration officers’ van and police back-up was summoned. There then ensued what was described as ‘an eight-hour stand-off’, during which time the Scottish government mobilised opposition to the removal. Justice secretary Humza Yousaf tweeted that he had ‘spoken to the DG for Home Office in Scotland’ and ‘urged him to abandon the forced removal’. Nicola Sturgeon echoed these sentiments, posting that the Home Office was ‘creating a dangerous and unacceptable situation’.
Unsurprisingly given this public agitation, the numbers surrounding the Home Office vehicle only swelled. It didn’t help that Yousaf declared in a video that the attempted removal ‘looks like it was intended to provoke’ by taking place ‘in the heart of the Muslim community on the day of Eid’. (The two men were Sikhs, not Muslims.) After eight hours, Yousaf announced that, the Home Office having failed to call off the removal, ‘I am pleased Police Scot[land] intervened on public safety & health grounds to release individuals involved’. In the end, the two men were set free and the Home Office sent van away empty, in what Third Sector magazine dubbed ‘one of the biggest demonstrations of civic defiance seen in the UK in recent history’.
‘Civic defiance’ is certainly one way to put it. In a subsequent interview, Yousaf was asked if it was his place as Scottish government justice secretary to ‘delegitimise’ the UK rule of law. He replied: ‘Yes, actually. I think people look to me for ensuring that I, and the Scottish government, are the voices of justice.’ An honest assessment would have to conclude that Yousaf and others succeeded in delegitimising the UK rule of law that day. The law said the Home Office had the power to detain the men, a mob egged on by the Scottish government thought otherwise, and the latter won in the end. What the Home Office took as a fleeting embarrassment, the Scottish government understood as a lesson in where power really lay.
A royal commission could consider how to prevent a repeat of this. One remedy would be amending the Scotland Act with a Tomkins clause. Writing in The Spectator in 2021, Glasgow University law professor Adam Tomkins proposed that devolved bodies be required by law to ‘facilitate the achievement of the United Kingdom’s tasks and refrain from any measure which could jeopardise the attainment of the United Kingdom’s objectives’.
Setting up a royal commission would be an opportunity to reflect on and refine devolution
Nor would it only be in the interests of the Home Office for a royal commission to examine devolution. Although health is devolved, there are some aspects which can and should be returned to Westminster. A key frustration for No. 10 during the pandemic was that attempts at a four-nations approach were obstructed by the Scottish government, which went its own way on everything from lockdowns and testing to rules on gathering and even closing the border. A royal commission could consider a special emergencies provision within the Scotland Act allowing the UK government to exercise devolved powers during times of national crisis.
The Gender Recognition Reform Bill, had it not been blocked by Scottish Secretary Alister Jack, would not only have changed the gender recognition system in Scotland but, as the Glasgow University legal academic Michael Foran pointed out, it would have altered the operation of Britain-wide equalities law. Whatever your stance on gender policy, it would be useful for a royal commission to consider whether fundamental rights and equalities should really differ depending on which area of the UK a person happens to be living in. This is something the minister for women and equalities should be able to get behind.
In a similar vein, the Scottish government’s now-delayed deposit return scheme would have had effect beyond Scotland, imposing onerous and expensive burdens on drinks manufacturers and bottlers in the rest of the UK if they wished to continue selling their products in Scotland. The scheme was kicked into the long grass after the UK government refused to grant a trading exemption under the Internal Market Act, but by that point business owners in England had already suffered financial and bureaucratic impositions from the scheme. The ability of Holyrood to legislate on matters that substantively affect the UK internal market would be another consideration for a royal commission. Kemi Badenoch should have no hesitation in supporting a commission to investigate this, this time in her role as business and trade secretary.
A royal commission is not and should not be only a Tory cause. The proper functioning of devolution and the good governance of the UK is a cause almost everyone should be able to get behind. This applies in particular to Labour. It has been 13 years since the party was in power at Westminster at the same time an SNP administration was running Scotland. The SNP has consistently used the powers and platform of the Scottish government to undermine and pick fights with Tory governments at Westminster, and the Tories aren’t really their main rivals outside some rural seats. A Labour government at Westminster, perhaps relying for its majority on seats taken from the nationalists in Scotland, and with another Holyrood election due in 2026, would face a Scottish government with every incentive to frustrate its agenda north of the border.
Setting up a royal commission would be an opportunity to reflect on and refine devolution. It would also reduce the ability of secessionists to misuse its institutions to undermine the political and constitutional unity of the UK. If Labour and the Tories don’t take the opportunity, they will rue the day either from No. 10 or the opposition benches.
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